Russo v. Vacin

• Decision Date: 22 January 1976
• Docket Number: No. 75--1075,75--1075
• Citation: 528 F.2d 27
• Parties: Leone G. RUSSO et al., Plaintiffs-Appellants, v. Emil VACIN, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 27

528 F.2d 27

Leone G. RUSSO et al., Plaintiffs-Appellants, v. Emil VACIN, etc., et al., Defendants-Appellees.

No. 75--1075.

United States Court of Appeals Seventh Circuit.

Argued Oct. 30, 1975.

Decided Jan. 22, 1976.

George C. Pontikes, Chicago, Ill., for plaintiffs-appellants.

Thomas A. Hett, Ian H. Levin, Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, Chief Judge, PELL, Circuit Judge, and CHRISTENSEN, Senior District Judge. ^*

PELL, Circuit Judge.

In issue is whether a claim upon which relief can be granted is stated by plaintiffs' complaint which alleges ward lines were drawn to minimize the strength of political opponents in an aldermanic election but does not allege the wards had disproportionate populations or bore indicia, such as lack of compactness, of some form of invidious discrimination.

The events described in the complaint occurred prior to the April 1, 1975, aldermanic election in Berwyn, Illinois. The plaintiffs are registered voters who prior to the redistricting resided in Berwyn's Fourth Ward. Under the redistricting plan adopted November 11, 1974, by the Berwyn City Council, some fell within the new Fourth Ward, and some fell within the new Fifth Ward. The defendants are the mayor of Berwyn, aldermen who voted for the plan, the Democratic Organization of Berwyn, the election commissioners of Berwyn, and other members of the Berwyn City Council, who were joined only because they were necessary parties so that injunctive relief could be granted against the full city council. The crux of plaintiffs' complaint is that Jerome McDonough, a publicly declared opponent of the incumbent administration and a potential candidate from the Fourth Ward, became by virtue of the redistricting a resident of the Fifth Ward. Since he was no longer a resident of the Fourth Ward, the election commissioners refused to certify him as a candidate in that ward. The incumbent in the Fifth Ward was also an opponent of the administration, and it was known that McDonough would not run against him. The plaintiffs allege that because of the redistricting, they were deprived of their right to vote for McDonough. Leonard Pajak, another opponent of the administration, also found his place of residence changed from the Fourth to the Fifth Ward. The complaint further alleges that the purpose of certain of the defendants' actions was to minimize political opposition in the Fourth Ward. According to the complaint, the objectives of defendants were 'accomplished by redistricting the three block area on the east side of Elmwood Street, where McDonough and Pajak live, which area had previously been in the center of the Fourth Ward, into the Fifth Ward.' The complaint alleges that the effect of these actions was to deprive them of their voting rights in violation of the equal protection and due process clauses of the Fourteenth Amendment.

The district court dismissed the plaintiffs' action as presenting a non-justiciable question and this appeal followed. Exhibits presented to the court showed that the wards, as redistricted, varied from the mean population of the ideal ward for the city by less than one percent and that the wards were reasonably compact. Plaintiffs note that prior to the redistricting the wards varied substantially in population. However, since the district court based its dismissal solely on the complaint, our review will be on the same basis.

Cousins v. City Council of Chicago, 466 F.2d 830 (7th Cir. 1972), cert. denied, 409 U.S. 893, 93 S.Ct. 85, 34 L.Ed.2d 151, appear to foreclose plaintiffs' claim unless, as plaintiffs argue, it has been effectively overruled by later cases. In Cousins, plaintiffs alleged that ward lines in the city of Chicago were drawn to discriminate against certain racial, ethnic, and political groups. Evidence was presented that an effort was made to keep incumbents within new wards which were approximately the same as the old wards. There was also evidence of an attempt to concentrate independents in two wards so as to minimize their political strength. This court held that disfavoring of certain political groups by those drawing the districts 'remains among the non-justiciable political questions.' Id. at 844.

In Cousins this court found it necessary to reconcile its holding with a reference in Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965), to minimizing the voting strength of 'racial or political elements of the voting population' in dealing with possible invidious discrimination in creating multimember districts. This court held the quoted language did not indicate that allegations of political gerrymandering presented a justiciable issue. This holding flowed from the Court's summary affirmance of a decision that political gerrymandering does not raise a constitutional question. 466 F.2d at 844. See WMCA, Inc. v. Lomenzo, 238 F.Supp. 916, 925 (S.D.N.Y.1965), aff'd per curiam, 382 U.S. 4, 86 S.Ct. 24, 15 L.Ed.2d 2. Force is added to this holding because it has since become clear that this court is bound by summary actions of the Supreme Court. Hicks v. Miranda, 422 U.S. 334, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975). The analysis in the dissenting opinion in Cousins by then Judge Stevens does not indicate that a different result should be reached in the present case than that reached by the majority in Cousins on the political gerrymandering issue.

Plaintiffs argue that Cousins is no longer good precedent since the Supreme Court's decision of Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). Plaintiffs characterize Gaffney as holding:

'(P)olitical redistricting designed to preserve and...